i am aware of the copyright

issue. i think it is a question of good policy. we have to watch that carefully. but i think we are ok on that. the fact that we recently went to .edu on the web, tries to dispel some of what is going on and show people, turn a light on on the academic work we're doing. those are the attractors for qualified civilian faculty. >> we are trying real hard, we are going to need to -- can we have an abundance of questions left, we have to? two hours, we will have a few questions for the record, questions go slower. we appreciate you being here today, appreciate your testimony and be will have some follow-up questions both formal and informal in the future. meeting adjourned.

[inaudible conversations] [inaudible conversations] >> coming up to dick, a meeting where several secretaries will be discussing climate change and energy legislation. they include energy secretary stephen chu, and interior secretary ken salizar. that is at 10:00 a.m. eastern on c-span. >> callie c-span3 funded?

>> the u.s. government. >> 30 years ago america's cable companies created c-span as a public service. the private business initiative, no government mandate, no government money. >> next, a forum of the u.s. supreme court 2008/2009 term which ended last week, participants include the deputy solicitor general and other lawyers who argued prominent cases before the court this term. >> lobbying in washington, in that time, there is no moment when covering washington has been more critical. it is such an important aspect of all of our lives, not only in washington but across the nation and one of the key reasons in the last year we have emerged

legal times and the national law journal, we felt providing washington coverage to the legal community across the country was important, in everyone's daily lives. that is especially true of the supreme court which is at the center of our coverage. we have been writing about the court's subtle shifts on several issues, shifts that seemed to reflect the priorities and personalities of the chief justice and his more conservative colleagues on the court. we have been covering very closely the nomination of justice sotomayor. follow our coverage where we have a special section devoted to daily updates on the nomination and archived news that will be continuing throughout the confirmation and selection process. next week, we will be giving you live updates from the hearings. coverage of the court is led by one of the best and most

distinguished supreme court correspondent in the country, tony mauro who will be leading our discussion today. with that, i will turn the station to tony will introduce the panel. >> thank you, david. welcome to all of you to our eighth annual supreme court review panel. thanks to our sponsors and also to steve lincoln, our publisher, here from new york. i would like to welcome a number of fellows from the solicitor general's office and in turn from that office as well, who are attending today. this has been a significant term at the court with decisions on issues ranging from title 7 to the 7 aphorism is from federal pre-emption to fleeting expletives and the departure of justice david souter from the court, in the life of the court, a very big deal.

the senate judiciary committee will begin hearings on the nomination of sotomayor. what makes this panel different from all the others around town, around the country at the end of a supreme court term is each of the panelists has argued that least one case before the courts in the term we are discussing. nothing focuses the lawyerly mind then arguing before the supreme court so we have all thought about it. we are especially lucky because the cases are analysts have argued are the most important and interesting of the term including some of the blockbusters that came out in the final weeks of the term, that the voting rights act case

and firefighters' case and the case on conviction access to dna evidence. were they blockbusters? they have been analyzed in many different ways, either as self like, narrow, or kicking the can down the road, or else very important for all of the above. i hope our panelists can tell us what they think and what the decisions tell us about the court. we also had lawyers argue major cases decided earlier in the term, the major business case of the term, state versus federal regulation, drug labeling, and there is the case which asked whether a city that allows the 10 commandments monument in a public park must also allow seven aphorismss monument in the park as well. it is a very diet diet so let's dig in. each of the speakers will have some opening remarks that i may

follow up with some questions and encouraged analysts to engage each other with comments and questions and we will encourage questions from you in the audience. i am going to briefly introduced the speakers that there is more information about them in your brochures. our first speaker the familiar with these environments. at georgetown law helped hundreds of advocates argue before the supreme court, including many, if not all, of the other analysts. she was at council where among other things she played an important role in assisting the criminal defense bar's advocacy before the supreme court. she represented a very interesting religious group called sumo, a variation on a recent theme of cases involving 10 commandments displays in public places.

then we will have the deputy solicitor general the united states, the first to go to the administration's flag on january 21st, he was on this panel just three years ago having argued against the government, very successfully. i think he told us then he had done 15 practice sessions for that case and i suspect in his new job he hasn't been able to prepared that will. but neal katyal hit the ground running and argued two major cases for the governor unposed conviction access to dna evidence on the constitutionality of the voting rights act. next, we will hear from gregory coleman, who is one of those rare lawyers who has been able to develop a significant and successful supreme court practice from outside the beltway. austin, texas, to be exact. he argued against the voting

rights act case, winning for texas utility district that wanted to get out from under the clearance provisions of the act. he also argued in that firefighters case, challenging the city's refusal to signify the results of a promotion exam because no african-americans did well enough on the exam to qualify. his clients would have been promoted had the exam not been tossed out. finally, last but not least, we have david friedrich, another member of the texas conviction on the panel, he is based in washington. david frederick was with us on this panel a few years ago and developed something of a niche practice representing consumers, challenging the concept of federal pre-emption. the concept that federal regulation pre-empts or prevents states from regulating in the same area either through state

statutes or lawsuits in state court. e won two major cases for consumers this term, also advise the supreme court clinic of his alma mater, the university of texas law school. it goes without saying that all four of our panelists have served as law clerks to justices of the supreme court in the past. hi was hoping you could start by talking about this case. it seemed an establishment clause case, wasn't really handled that way. and your thoughts about the term? >> i think it is a very interesting question how the case was handled as an establishment clause cases. there was no establishment clause claim being raised in the case. nevertheless, a lot of what was driving the justices, a lot of the strategy in the case was played out against this kind of shadow establishment clause,

background, to explain the result in the case. i thought my clients had a sympathetic free speech claim. they were very sincere. at the end of the day they just wanted to express their own religious views in a public park that was already home to different religious views in the form of the 10 commandments monument. seven aphorisms were unfamiliar to most people, quite foreign, there was nothing offensive about them on their face. it is a bit of a contradiction in terms that they were very mainstream, new age religious tenets, emerson and thoreau dressed up in new age religion are. on the face, there was nothing outrageous, nothing hateful, nothing offensive about the speech they wanted to engage in in this public park accept -- this was the crux of the case -- the proposed monument would have

been placed close to the 10 commandments monument, and so it might have conveyed the idea that the 10 commandments were not a singular, were the only religious truth, and i think people were very deeply and very genuinely offended by that implicit message, some people found it quite literally blasphemous to put a different religious monuments so close to the 10 commandments monument which raised what i thought was a fairly compelling free-speech question. over the last 25 years or so there has been a consistent move toward opening the public square to religious views and religious speech and that is all to the good but it does raise some difficult questions like whose religious speech, exactly, will be included and if you want to bring your religious views out of your religious community and into the public square, the public marketplace of ideas, do you have to be prepared for the give and take, do you have to be

prepared for the idea that there could be different viewpoints expressed as well. when you think about the case that way it does present this fairly compelling free-speech claim, it is not without problems, no question about it. monuments are different from other forms of speech and the government needs more latitude in regulating monuments. there was something sympathetic there, which leads to the question of how did we manage to lose this case 9-0? i think the problem for us was that the court didn't really think about it as a free-speech case, they fought a data at the against the background of the establishment clause and that was playing out strategically in this case that made it very hard for us. the more liberal justices who should have been sympathetic were actually very concerned about calling a monument in a public park, even if it had been privately erech like the 10 commandments monument, about

calling that private speech which protected under this the -- free speech clause that makes it harder to challenge it under the establishment clause. just showing it is conveying a governmental religious message and not just a private message. so the justices who should have been our allies were against us. they were very worried that our free speech position would end up insulating religious monuments under the establishment clause. the conservative justices had this sort of mirror image problem. on the one hand, they did not like our speak -- free-speech claim, they saw it as enron against van norden and prior establishment cases that had approved a public display of the 10 commandments, they thought they had already approved a right of singular or preferred access for the 10 commandments where everyone gets to put up a monument. they were worried that as a practical matter if we won this case, cities will take down their 10 commandments monuments before they would open their parks to a bunch of other crazy

religious monuments. on the other hand, these justices were very aware, as liberal justices, that once you call an arguably religious monument government speech, you make it much more amenable to establishment clause challenge. i think what is most interesting about the opinion in this case is how justice of the go --al --alit--alito tried to college government speech which immunizes from free speech claim, but at the same time, tried to minimize the establishment clause exposure from that kind of monument. again, this shadow establishment clause, the way it was being fought out, for us as a strategic question, we knew we were losing this case going in. we could see what was going on, we knew we were going to lose and the question was how did we want to lose the case? that was driving our litigation

strategy. our clients's first concern was we will all express our religious views in a park but if they couldn't get that their second choice was losing in a way that would be helpful under the establishment clause, and specifically, losing with the ruling we actually got, that any monument in a public park is going to be reasonably seen as conveying a governmental message, as a kind of government speech. win -- in that sense this was a huge victory for us, 9-0 loss, we got what we wanted, we will get the next, the the establishment clause. where this case will matter most is -- we are not going to see something like this again under the free-speech clause, monuments are different, that is the bottom line and the the free speech clause. where this case will matter is under the establishment clause in these display cases and quite possibly in the case next term, salazar verses bono, arguably religious monument, a christian

cross erected by a private party, veterans of foreign wars, on government land. it will be very interesting in that case to see how things play out and how successful justice a alito was in planting the seeds of this defense. >> okay. i want to ask you about your transition from private attorney to government attorney and the different pressures and expectations that involves, more specifically if you could talk about the voting rights case, certainly during oral arguments, seem to many people that the court was ready to declare the law unconstitutional but it didn't quite turn out that way. what are your thoughts? >> let me start by thanking the legal times and georgetown for posting this, the big change, you asked about the transition, it was pretty rough. it is an enormous privilege to

represent the government of the united states. with that privilege come certain responsibilities, one responsibility is a responsibility not to ever make any news, sorry to disappoint you. i generally try to avoid making news. anything i say is in a personal capacity. when i got to the department on january 21st, it was an enormous time of transition in the government in terms of the executive branch. the solicitor general's office is a little different. than other parts of the government. one thing that is different is the structure of the office. i am one of the deputies. there are 23 other deputies who know a lot more about the supreme court than i do. then there is the solicitor general. that is different from the office of legal counsel in which all of the deputies are political the beatty's and they change from one administration to the next. there's a lot of continuity in our office and a great premium

placed on stability and the positions that we take from one administration to the next and that creates no amount, and untold amount of frustration on the part of activists, the party and otherwise, but it serves the government quite well because we are not simply the administration's lawyers, we are the government of the united states's lawyers and that means we defend laws of congress that were passed, enacted into law. that is not to say we won't every change our position or think about stuff in a new way. one example, an interesting case is the fourth amendment case involving the strips search of a 13-year-old girl. traditionally the justice department, we have some strong -- we take our responsibility more seriously than virtually anything else and we generally do not ever -- we do not side on

the side of saying there's a fourth amendment violation but in this case we can only think of one other example in memory, in which we think government has come in and said there was a fourth amendment violation in this case. we argued in that case that her rights had been violated, fourth amendment rights, but there was a qualified immunity defense available to those officials and ultimately that is what the supreme court concluded, 8-one. for me it has been an enormous personal change. when i did cases before coming to the government, basically did cases with students, one of my former students spent two years working with me as part of a team of 49 or 50 students from all around the country that were writing these drafts and briefs and so on. it was a ragtag group of people. i was doing the table of authorities and contents myself and things like that. i then come to our office, which

was amazing. there were 16 attorneys, four deputies and a staff of 20 paralegals and assistants, the quality of work product is literally breathtaking. i remember my first weekend, i got an assignment that was very complicated. high sensitivity. i said to one of the assistants, i got a 24 page, beautiful memo that was far better than anything i could have written. that is an enormous shift. they knew this in our office, the budget of $10.4 million for the entire year. we participate in 50 supreme court cases, we review every appeal decision made in united states, by the united states government. there is an enormous amount of work that is done for that amount of money and when i was doing cases last year privately i was involved in a case where

one side spent $10 million on just one case. we did that in our office for the entire year. it was something quite remarkable. in your opening remarks you talked about the timing. when i was teaching here, i have the ability to think big thoughts or small thoughts and have the time to practice my arguments. i practiced 15 times. the case ended last year, i did something like eight moves or something like that. i got to the government, my dna argument which was march 2nd, i think i got able to read the brief about a week before the argument, had the customary two weeks in the office, right after i got to read the briefs. it is a very different pace in that office. it is remarkable how briefs get written.

you are up there and are doing, it is nothing like i thought before i got in. one other thing i will talk about, i will do the voting rights at the next segment. i want to talk about the difference, the transitional difference between being a private litigant particularly one going up against the government, and being on the other side because i looked at the gentleman to the left for geographic purposes greg coleman. i watch what you did and had enormous respect for how you conduct yourself in the litigation throughout this. i know what it is like to be against the government, your clients, i am sure this happens to your clients, you're taking these cases, your family may be upset that you're devoting all this time to these cases where there is no money involved, the media is upset. these are all things i dealt with and you had some of these

experiences. what you do is you really perform a valuable service in making us more honest as government officials and it is enormously powerful, this great thing about our country that we allow people, private litigants, a little utility districts, fourth grade educated, to come in and challenge the most powerful people in government. i remember when judge roberts was in his confirmation hearing to be the chief justice of the united states, he said the great thing about the supreme court is on the one side of the corner and you have this little guy, this big corporation, fancy corp. with all the lawbooks and law firms on one side and on the other side you have none of that, just the little guy with an argument. if the little guy has a good argument, judge roberts, in the spring court, he can win. that is what greg showed this

term. >> i almost need to say nothing more except to turn it over to you and ask you to talk about the two cases you argued which were scheduled. within one week of each other. how did you prepare for those and what do you think they stand for? >> thank you for having me. i appreciate the opportunity. if i can hold back my welling out from neal katyal's compliments, altria -- neal katyal shows the and most of graciousness in all that he has done in my interactions with him. it has been a pleasure to get to know him better through these cases. you ask about preparing two arguments within a week of each other. i will tell you that.

we have attempted to see if we could arrange to get them a month apart but that is not going to happen. the clerk's office had other things they had to do. we decided to start early. we began the process in march. i had muted those cases before the first of april. duke university was extraordinarily gracious in having us down and moving the cases before panels of professors, georgetown was extraordinarily gracious in allowing us to come here to moot both of the cases. i moved up into a sweet's type hotel just mauro of april and bid farewell to my family and holed up in a hotel and sat in the hotel room and read and we did go out and move for half a

day and when i came back we would go over and keep going. and tried to keep going. so i was here more than 2-1/2 weeks just to hardly see the light of day except come out. it was a difficult process, not something that i encourage others to do. something i felt we had to do to get through the cases. >> which hotel? >> if actually -- i stayed in a place nobody will know of call the virginians weeks. it is a cross -- across the river near the the ogee memorial, it was the cheapest thing in town. did find phosphoresce. we have a good time. neal katyal said something that was important. wasn't by design that we had two cases come up the same year,

wasn't by design that we had two cases involving issues. we tried to keep the dialogue going about both of these cases. i feel the position we took is the right one. we are extremely happy that we have won. this section v thing is something we have struggled with for quite some time. the remedy that the court gave was a remedy we had been pushing for. lot of commentators have asked, were you disappointed that you didn't get section v of the voting rights struck down and the answer is clearly no. yes, we asked for that, i do think the argument is right. but this is the first case the

supreme court has had in quite some time where any part of section v or the apparatus surrounding it has been challenged. three years ago nobody was talking about section v or whether its application to various parts of the country might be unfair. people are talking about that. commentators on both sides of the philosophical i'll have been suggesting congress really ought to rethink some of what it did in 2006. maybe it should make some changes. the idea of opening up the statute to allow bailouts which frankly have not been permitted, really since the 80s, is a really good thing. allows political subdivisions to go before the department of justice and ultimately the district court and say we have been committed to living up to our obligations under the voting

rights act for 10 years or more which is the statutory requirement. we don't have any violations, nobody has accused us of discrimination, nobody has objected to our clearance submissions, we have done all that has been asked for us, so let us out. the interpretation that had been given is for nearly all political subdivisions we are not eligible so go away. the court's opinion allows that process to go forward and i think that is a really good thing because it encourages small political subdivisions like school boards and utility districts and small cities and others to say this is meaningful, this is something we can work toward, we can show the will of the to our obligations under the act and at the end of the day there is some reward for us, and their reward is the federal government will recognize we have lived up to our obligations and we can

obtain a bailout and move on down the road. i view this opinion as a really good development. ultimately in is a warning shot to congress and the department and says if this system doesn't work, if these entities can't bailout four or five years down the road we may take another look at the constitutional issues that have been raised, but for the time being, let's see how this works with a really effective bailout. i have gone over my five minutes. the want me to talk about the firefighters or come back to that? >> why don't we come back to that? do you want to respond now or wait until after david? >> david, your case affected you quite deeply, you talk about

that, how you think that decision on federal pre-emption fits in with the trends of the court. this is pre-emption? >> no. next question. first, let me thank you and legal times for having me again. last time i was here represented a group of texas peanut farmers whose crops had died by pesticide that had been improperly tested and warned against, the pesticidemaker brought the case to the supreme court arguing farmers could not bring claims for negligence, in the warnings for their products, and we prevailed in that case. that case really trust me, wittingly or not, into this whole preemption war that was fought out this term in the

supreme court and three cases, the persons arguing against pre-emption, and when i represented another party arguing the controller could not preempt state enforcement efforts and anti discriminatory lending laws. wife was a case--all of these cases i got -- wyeth was one where i got called and asked if i would be interested in helping out diane levine. she came to my office and we met and it was an extraordinary meeting. i don't want to go into all of it because of attorney/client privileges but one thing that was striking was the sense in which she still viewed the case as about her, and i tried gently to suggest to her that now that the case was in the supreme court it was no longer just about her in that she needed to be a spokesperson for all

persons who had been injured by drugs and had been negligently warrant and the advocate had the responsibility to represent all of those people that were similarly situated to her and that created a very awkward moment in the first meeting between an attorney and a client and up until then, with the trial, the appeal and the state supreme court, she knew that it was about her claim, whether or not she was going to be recompensed at a level that would enable her to get on with her life. this is a professional musician whose arm was amputated just at the elbow point and she could no longer perform or record music, she was a musician, delighted in exchanges with students and young people to get them involved in music, so this was her life. the judgment that she had won would enable her to fix her

house up in wastes that would enable a one armed person to live a life, to drive her car safely and to do things that would enable her to be above the subsistence level where she had been consigned after losing her career as a musician. i felt very deeply the responsibility to do the best i could for her, and i think those who helped me with the case felt that responsibility keenly as well. the court rejected the claim of pre-emption. the industry, the pharmaceutical industry argued for a very broad pre-emption principal that whenever the fda approves the drug label, that would preempt state law failure to warn a client. for decades the food and drug administration had essentially can for tacitly taken the position the state law claims

provided information that facilitated the government's regulatory mission of ensuring safe use of drugs, imposed on the manufacturer the duty to ensure their labels were up-to-date for the most recent information. the bush did ministrations had changed that view. in a rather radical position that the bush administration over reached-when you go up against government, that is one of thing, when you got against the government with industry and change in position, there's a

special dynamic at play, we were quite concerned because the government had never lost a case on applied pre-emption in which it asserted there was preemption through a governmental faction. one of the things that will be very interesting is to see to what extent the obama administration carefully reassessing the pre-emption position taken by the bush did ministration will go to the line that the bush said ministrations the core to reassess and evaluate in water circumstances with the agency's change policies, how far a pre-emption should properly go. there is no doubt that there is room for federal supremacy. when i was in the solicitor general's case, i argued one of the main cases, united states vs. law, for the federal supremacy. there needs to be appropriate

balance in ensuring there are mechanisms for redress and remedy where appropriate and where there is improper balancing of the role the federal government ought to take in displacing state laws and principles. >> going back to neal katyal and greg and the voting rights case and the firefighters' case. greg was saying this decision was sort of a challenge to congress and the justice department. i wonder what you take from the case, and also the point that both of you can address about the oral argument, it did appear to many people that the court was going to deal with the constitutionality issue from the oral argument, they stepped

back, eight justices joins in an opinion that was critical of the voting rights act but didn't pull the trigger and that still has a lot of people mystified. what are your thoughts? >> one of the remarkable things about chief justice roberts's floating rates decision is it allowed the court to declare victory, the attorney general right after the decision, praised the ruling. it was a remarkable act, all sides are in agreement that the decision was wise and wonderful, and i think the factors behind that decision are probably a couple of things going into the mix. we looked at the case, we are coming off of an extraordinarily powerful court of appeals opinion by judge taylor and an extensive record in congress, 21 different hearings over ten

months, something like 16,000 pages of evidence documenting the need for the voting rights act. and there were lots of tough questions and oral arguments which we both appreciated as advocates to hear what the court's concerns were bought at the end of the day, one thing that might have happened is simply the extensive record, when put in front of the court, put a kind of concern in their minds about judicial activism, and should they really reach that ultimate step? it would really be something extraordinary to strike down the voting rights act which has been a modern killer of legal landscape for 40 years. that having been said, many people were surprised the statutory bailout decision was the way in which the court dealt with this. that is a fairly tough argument to get to from the text of the

statute. and one of the interesting things people will be debating and talking about in years to come, what is the appropriate model for judging? until you have chief justice roberts's model which one could think of in terms of chief justice marshall and you could think of it in terms of cobbling together majorities of people for positions that don't -- are not always intuitively obvious as a legal matter but in some sense have this underbelly of private is in and politics, in terms of making people of all sides and all persuasions come together and celebrate the decision. there are some costs in terms of stability to a statutory text and the president as well but particularly multi member court, really strong case to be made for it and on the other hand you could say there is the view of

the true intellectual, or justice william rehnquist in the 1970s, which ultimately become in many cases the law of the land and justice thomas is staking out a bit of that territory, not being afraid to be the lone dissenter of the voting rights act case or the strip search case, and it is unclear to me which is the right way to be, but that is a really powerful question that is set up by the voting line, the opinions written in these cases, but the very interesting thing about chief justice robert's decision is it doesn't come away very pleased. >> one thing i have never understood since the moment the decision came out is the commentators have said the statutory interpretation

argument doesn't make any sense. my friend and foe clerk wrote a blog saying i must be a mad genius for getting to along with that. there is a series of cases in the 70s where the court said that limitation on the definition of political subdivision doesn't apply because it would limit the act. in case after case, that definition was set aside in favor of a broader definition. there is no reason here, every other provision in the act exit for one, use the broader definition. so you ought to do it. you asked about whether the court was stepping back. there is another way of looking at that. my experience is most of the

justices have already made up their minds before they get into oral argument. there is some question as to whether the commentators are correct in suggesting they got scared off after oral arguments or whether they had already pretty much decided the way they going to go and simply felt free to use oral argument to plumb the depths of a variety of arguments including a constitutional argument even though they had already decided that that is not the way they want to go. >> can i jump in? i wrote a brief on the case, we were on neal katyal's side of the case, these two, the naacp lawyer argued they did a terrific job, it was one of those cases, landmark case where all of the applicants did an

outstanding job but to me the case came down to this basic common sense, you have the utility district that had not any evident history of doing anything wrong, they were simply trying to get out from what they perceive to be the strictures of pre clearance, there was a common sense to that. at that level the government side have a hard time persuading -- the point about supreme court advocacy, the advocacy proceeds in a number of different levels, there's a level in which your case has to have a certain common sense to it and you have to find a way to communicate and transmit ideas at all levels of detail from mid level pherae

down to the details to seal up a way to get to five votes. in the cases we have been talking about here, a loss can be attributed at some level to not having those different pieces fit together in the proper way because i was on the side that thought that the statutory reading was a stretch. at the level of common sense, there was obviously a view that these small districts ought to have an opportunity to be free of the voting rights act. >> a word about the argument which i found really interesting. what i'd do see is a disjunction between argument and the final opinion in that case. i am very intrigued by greg's suggestion that the justices knew what was going on before they got to argument. i was a little bit puzzled by the tone of argument and the chief justice's tone in

particular because i thought if he was trying to woo justice kennedy, bring justice kennedy fully on board for in validating the voting rights act, do that, i thought, you have to persuade justice kennedy that you can do it in a way that was respectful of the act, that respected what it had done, what it had achieved, what it meant to this country, that was not the chief justice's tone and argument at all. i almost got his tone was counterproductive and might have cost him justice kennedy's vote. another way of thinking about it is maybe he already knew how this was coming out and it didn't matter and this was a chance to get a little catharsis, if it were up to me we would -- i need to vent about that a couple minutes because i was very surprised. i think he is a very gifted -- politics in the best sense of it, a good politician, very good

tactician, brings people together when he has to. i didn't think his tone in that argument was more divisive than political. in the good sense. it might have given people some cold feet about what this would look like if they struck down the voting rights act. it would make a lot more sense if it was a done deal going into argument. >> i have read these things about tone, the magazine, new yorker, the chief's tone, the argument in the case, standing five, six feet from him, i didn't perceive that at all. i did not see a hostile tone, the typical get to the heart of the thing, i never felt hostility to the act in questioning. but i do know that other folks have. is interesting, i don't know if there is something about the dynamics of that court room that makes it different, very close

interaction between advocate and justice or not. being so close i didn't feel it and i am used to feeling it. as to greg's point about the possibility that justices new ahead of time, that is probably unlikely based on the notion that it would be hard for them to get information about everything free argument, the way the other justices -- i'm n saying it is impossible. were that the case of would have expected -- no question that all in my part of the argument. the other gentlemen on my side, the intervenor got two questions, a couple as well from greg. it strikes me as a fairly unusual circumstance if they

really thought they were going in with the idea of a statutory bailout, there would be questions directed to that particular matter. >> some people said the crucial question, justice david souter asked greg, would you be happy with just bailout, you wouldn't have to go all the way to the constitutional issue, and when you said yes, you gave them permission to rule in a more limited fashion. am i remembering that right? >> there was that question. i am not remembering who it was. if anybody remembers. essentially, if you went on bailout, are your clients going to be satisfied? we told them yes. several commentators have suggested once we said that, it

was -- our briefs made that perfectly clear. it wasn't anything from oral argument. it shouldn't have been clear from our griefs. >> maybe it is an imperfect segway, a question of want to ask generally about justice david souter departing. his questioning, will you miss it, are you glad? what role do you think he played on the court? is open to anybody. >> all of my arguments have been before justice david souter and i am going to miss him greatly. ask him a question in a way he conveyed wanting to know the answer. he asked questions in a

balanced, a question of curiosity. you avoided answering at your peril because it was quick to follow up. if you answer the question should do. the civility, the tone, the decency brought to his role as a supreme court justice, he has an understated manner about him, maybe they will not appreciate incredible intellectual intellectual capabilities. i think the supreme court is

going to miss him as chairman this amount. is exciting that judge sotomayor will be replacing him. she will bring new qualities to the bench. it is a shame they could not have served together because it would have been an interesting dynamic to watch the two of them contend with issues. >> one of the interesting things about justice david souter is how funny he is. it doesn't always come across on the bench the there's a great story about him. he drives to new hampshire every year to send -- spent 3 months in his cabinet and stopped at a rest stop in massachusetts. a couple following him says that man says you are on the supreme court, right? and justice david souter says yes, i am. they talk about what it is like to be on the supreme court and the man says i know you, you are

justice prior. he nods his head, doesn't want to embarrass this nice gentleman in front of his wife and so on. they talk about the court and then he says to the justice for flooding is the best fifth about being on the supreme court? and if david souter pauses and says 5 things, for investing the of the numbers friend with the privilege of serving with justice david souter. from my experience, there has not been a more incisive question than justice david souter. i remember when i was prepping one of the arguments, one of the things we really wanted to do was get the court to have a line of questioning about stripping eightieth corpus and whether it was -- we spent weeks trying to figure out, we bracing king

about this line of questions. we didn't get just this stevens to do it. in the dna argument which i did in march there was a lot of questioning of is worried about getting, and sure enough, justice david souter was the one to lodge that folly of questions. his opinion on the dna case was a really moving opinion. event code to conservatism. it is about substantive due process and the need to go slow. that is not something we have traditionally seen a lot of in

the supreme court for right and left of the court, justice david souter is staking that position in that case. it will be one of his great legacy for the court. >> i will miss justice david souter so much from arguing in front of him. it was incredibly incisive in his questioning, and as he stayed on the court more and more, she stayed more persistent in his questioning but always in a very decent way, always wanted an answer, wanted to know what you would say. and in my case, he was the justice, right on top of this intersection between the free speech clause and the establishment clause, the one who was most of friend about talking about it in establishment clause terms. i felt we had a deal where he was a nicely we are not ruling for you under a crazy free-speech claim but come back

with the attachment claus and i will be there for you that at the end of the term he disappears. i am put out by that because i thought he really got it and we had understanding. >> a few days too late to get him back. >> one thing and would like to say about justice david souter is when i was clerking, who wasn't staying in washington, i tried to come downstairs for every oral argument whether it was a case i worked on or not to watch the court, to watch the advocates in front of the court, and one of the things justice david souter, you already heard this from the other analysts, his questions are very insightful, incisive, he does have a nice tone about him. one of the problems that advocates had, questions sound so nice that they wanted to

agree. wouldn't your argument be better -- say yes. that would lead to this, he did say yes, then he would say and therefore don't you lose because of this? it is that old picture of somebody getting painted into a corner. one of the things that i went back to texas with was a strong feeling that when you go in front of somebody like justice david souter, you can't let yourself be brought over by a friendly smile and nice tone, you need to be very clear about what you agree with and what you disagree with. in fact, this term, early in the firefighters' case, he asked me a couple questions, i disagree with that because i have such respect for his mental powers and where he goes with the

questions, that you just have to know where he is going, where you are willing to go and where you need to draw the stop. what is the city supposed to assume? that got to the heart of this intersection between disparate impact and disparate treatment and titles, how do you define a rule that allows these employees to be fairly treated but doesn't unfairly prejudice the employer? . >> and did the court come up with the right answer in your view? >> yes, they did. [laughter] >> but was it a full loaf?@@@@@r

>> we weren't sure whether the court would say strict scrutiny applies on the equal protection claim, and off you go on remand. that the court said that the strong basis in evidence test would be the test for title 7 and then ruled as a matter of law that the city was liable under title 7, i think, was something we hadn't necessarily thought was a strong expectation on our part. and i'm not sure why the court went that far, but i think it wanted to make a clear statement in terms of where the law was, and it may be that they wanted to make statement with respect

to the individual petitioners who had been waiting for promotions for six years. >> well, before we go to the audience for some questions, i just want to pick up on a few themes. neal was mentioning earlier the idea that this, that roberts was sort of a pragmatic leader and cobbling together coalitions, and a lot of the analyses after the term -- that the roberts court this year was more incremental or more interested in smaller steps and compromise perhaps. is that a theme that all of you agree with or not? >> i'll jump in. i think i'm not fully on board with that account yet, and part of it is we just don't have

enough information yet. in a few more terms we'll have a much fuller picture, when the papers come out, we'll obviously know about what happened this term. but to my eye there's another equally plausible account for a lot of the decisions this term which is that the chief justice is going just as far to the right, and he's going there just as fast as justice kennedy is prepared to go along with him. and at least to my mind it seems at least fairly clear that in some of the court's decisions like the herring case, the early exclusionary rule decision from the beginning of this term, that there are four votes including the chief justice for getting rid of the rule altogether, and that is justice kennedy who's sort of holding them back, who's not quite there with them. again, with the voting rights case it's very hard to tell what happened there, but my hunch at least based on prior opinions and arguments and things like that is that it was probably justice kennedy who had the cold

feet about invalidating the voting rights act altogether which takes nothing away -- i really want to be clear about this -- from the chief justice's ability to sort of make the best of not quite having five votes for exactly where he would like to go and to nevertheless put together these opinions with very strong conservative principles in them that will sort of move the law perhaps more slowly than he's prepared to. but i'm not quite ready yet to say it's the chief justice's sort of since of institutional -- sense of institutional integrity that's stopping the court from going any further. my guess is it's really for wont of a fifth vote and it's justice kennedy it's still an incremental court because it's still justice kennedy's court just yet. >> if you look at the votes, justice kennedy was in the majority in, what, 18 of them? by far or pretty clearly the largest number, and the

coalitions that formed around most of them were the predictable ones, but there were some outlier cases, four or five, where justice scalia might peel off and form the fifth vote or justice thomas might peel off and form the fifth vote. but, you know, i think that i agree with some of what pam says. i also think that they're still feeling each other out, and i think one of the things that, to me, is a very interesting thing to be watching is the extent to which an axis forms with justice kennedy and justice alito because there were a number of separate opinions that one or the other wrote that they each joined, and i think there's a very interesting dynamic going on there at the court. justice alito has a very quiet, highly competent way about him. he writes extremely well and

very thoughtfully, and his questions at argument are superb, and there seems to me to be something going on there that is an interesting thing to watch. >> yeah. and i totally agree. i think justice alito was very interesting to watch this term both for this sort of incipient alliance with justice kennedy, and because i saw him in a lot of criminal cases this term splitting off from the chief justice and moving a little bit to the right of the chief justice, writing sprally in -- separately in a bunch of cases, and i think he has in the criminal context where i spend a will lot of my time, probably of all the justices he's the most interested in the criminal cases, he's very interested in criminal procedure cases, and it's giving him a lot of authority in that area, and i agree with dave. he writes very, very good, cogent, careful, solid opinions in that area, and i think he's

really a force to be reckoned with, and i think this term saw him sort of coming out a little bit in that area as well as some others. >> i think the point about the chief, you know, not necessarily controlling everything is a good one. you know, two years ago it was a very guided court with a lot of -- divided court with a lot of 5-4 opinions, and everybody was saying, aha, the chief has reined everybody in, and he's now driving the cart. this year saw a sharp turn back, as david said, toward having more 5-4 decisions with kennedy on them. one little anecdote i'll share is during the firefighters' argument justice breyer started asking me a series of hypotheticals, and i do mean a series, not one, but multiple ones in the same question. and i said, well, justice breyer, those are justice kennedy's hypotheticals from his

concurrence in parents involved. and he says, well, precisely. which he obviously was aiming towards justice kennedy. in terms of his questioning. when i attended the fifth circuit judicial conference a couple of weeks after that when justice scalia came down and gave a speech, during his presentation and the question/answer section somebody asked him about that and asked him about, you know, the number of 5-4s and, you know, was he struck at how obviously people are playing to justice kennedy's vote during oral argument. and he acknowledged that it was true and even had some discussion of this questioning from the richie case and kind of tried to be humorous about it and say, well, you know, there are several others up there on the bench.

it doesn't have to be all about justice kennedy. but i think that some people going in on these cases are counting up the votes and thinking that maybe it is. >> okay. i'd like to open it up to questions. there are microphones on either side and some roving microphones as well. >> hello? yeah, i'd like to ask the panel about the gross case. it seemed that the court came down with the decision that wasn't briefed or argued and had fairly far-reaching consequences

or at least potentially. in changing how the age act is construed and litigated. just wondered what the panel thought. >> well, it is pretty -- >> if you could just sort of summarize what the case was. >> oh. gross was an age discrimination act, and we see in a lot of title 7 cases where you have mixed motives and, you know, the argument is, you know, you fired me because of my race, and the employer says, no, i fired you because you're an embezzler, and then, you know, the case has to go to trial. there's a series of questions that are put to the jury that emphasize to juries that as long as they feel that race was, in fact, a substantial factor that they still have to find

liability even if maybe there's something to the embezzler point. and congress had amended title 7 to include or to expresley recognize that -- expressly recognize that and that wasn't done with respect to other forms of or other acts that outlaw discrimination including the age discrimination employment act. and the court in an opinion that surprised quite a few people actually said that because it's not in the adea and we have some questions about whether we were right in the first place when we read it into title 7 before the act, that we're simply going to say we're not going to extend it to other acts unless there's a clear indication that it was intended. obviously, in the firefighters' case amici had suggested this mixed motives case, and we had, you know, held it off like the

plague, but it was quite a shock, and i think far reaching and i'm not sure people were really expecting it. oral argument clearly was hostile towards mixed motives, but before that i'm not sure people were really strongly thinking the court would go that way. >> what might you say was an underrated case of the term, something that's going to have long-ranging impact that's not really getting the play in the media? >> the case about the suit against the attorney general, john ashcroft, and the fbi directer, robert mueller, about the use of discriminatory mote i haves in -- motives in bringing about post-9/11 decision making and in saying that those suits could not be brought, the court applied a pleading standard, a

rule of pleading what can be in a complaint, what needs to be in a complaint to survive a motion to dismiss. and they took it from the antitrust area, and they imported it into this area of official immunity. it probably will be the single most cited case from this supreme court term except wyeth vs. levine. there are tens of thousands of drug cases out there, so the wyeth case is going to get cited hundreds of times, but in deciding whether the most basic reck by -- requisites of pleading a change in light of the verdict the court announced. >> actually i agree with dave in terms of the practical import of the cases. another case i think didn't give enough attention is the monte owe case in which the court -- it's a criminal case about the consequences of evoking sixth

amendment right to counsel, and the court even though nobody had asked it to, useed as an occasion to square overrule michigan v. jackson which was a case that construed it in a protective way, and it's not the outcome that i think is really so significant, it's that the court on its own, again, without the state having asked for this decision decided, you know what? let's just get rid of michigan vs. jackson. it's not that big a deal. and i think that to me at least indicates that this is a court that at least in some areas is going to move very aggressively. criminal procedure cases, criminal cases and will be prepared to overrule prior precedent to get where it wants to go. >> i had no idea monteyo would come up during this discussion. one of my first cases i ever argued was a case called texas

vs. cobb, and we had asked the court to overrule michigan vs. jackson. we could not get the solicitor general's office to go along with this at that point, but i'm told they have much smarter people there now. [laughter] >> we have so much to blame you for, greg. >> but we did get a three-judge concurrence from kennedy saying i just don't see how michigan vs. jackson adds anything to the mix. adding to your comment though, of course, is one to -- to me -- the most amazing developments of the term which is this is the first term in i'm not sure how many where the court actually didn't finish its work and set the hillary movie case for reargument next term, and, of course, consistent with monteyo and your comment there, part of the reason appears to be at least there's some number of people on the court who are

wondering if they should overrule austin or parts of mcconnell. and that in itself is a pretty substantial move on the court's part. >> yes. >> [inaudible] >> just wait for the microphone so we -- >> thank you. i'm john britain, i'm immediate past chief connell for the lawyers' committee for civil rights under law, and we opposed greg on two major cases, and i'd like to acknowledge his skillful advocacy, fine results. one case that struck me the most is the case that overruled the prior precedent on search of compartments in automobiles by justice scalia. is that a liberal side of the justice or his civil libertarian side, or is there any difference between those two concepts? >> i have thought for several years now we're seeing something so interest anything the

criminal procedure area, and forgive me because i find this endlessly fascinating. it's like there's two courts when it comes to criminal procedure. there's the scalia court, and you see it in the sentencing cases, you see it in the confrontation clause cases, and you saw it in gant which is the case overruling prior precedent, the bellton case, well, the majority says it's not overruling bellton but reconfiguring bellton in a way that really narrows police discretion to search cars during an arrest. and in these cases i think to their credit there's an originalist argument, it's a serious argument, it takes them to a place where it might not be their preferred political opinion, and you get this unusual lineup where you have these two very conservative justices on the pro-defendant side, and you have some justices people think of as more liberal

but very concerned about the pragmatic impact of these decisions in dissent, and i think gapt just falls right in that category of cases, and really to the credit of these justices, they will follow this originalist argument when it points them in that direction, and it's one of the reasons i think as the court has grown more conservative, the criminal defense bar there's still been openings largely because of of these cases. >> melendez/diaz could end up being hugely important for the practicalities of how cases unfold. the court held 5-4 when a lab examiner has done scientific analysis in a case, he produces a report that's used by the prosecution. the defense has a confrontation clause right to cross-examine the lab examiner who did the actual lab work. and historically lab work in this country has not always been

done by the person who testifies. in fact, the fbi for decades had a tradition of somebody who knew something about science doing the work and then a very handsome, typically white male agent would go testify. and lots of people were convicted even though that agent didn't know anything about science and had no bachelor's degree or masters degree or anything. so one of the interesting thing about this melendez/diaz decision, thankfully, that practice has been changing in the fbi, but some of the state and local labs have not yet caught up to these more modern practices, and melendez/diaz, i think, really throws down the gauntlet to insure that there is absolute fairness in providing a mechanism for defendants to cross-examine the actual people who do the actual work in this science lab. >> and that was scalia. >> it was a scalia argument. scalia wrote the majority in that.

>> any other questions? >> with judge sotomayor possibly becoming justice this coming term, do you anticipate that advocates are going to have to change their litigation or argument strategies and how? >> has anyone argued before her here? >> i did some years ago, well, about four or five years ago. my experience was that she was very well prepared, she asked, you know, dead on, insightful questions and did so pretty forcefully. she wasn't going to allow her questions to be evaded in any way. so, i mean, in that sense i don't really foresee a big change. some other panel members may

know some areas where her ideas may be different from those of justice souter's. i've had some people tell me that they think justice sotomayor will have some different views on punitive damages than justice souter has, but i'm not really aware of a lot of different areas where there'll be many differences. >> i would say that it would be unusual for a highly-skilled advocate to try to change an argument just because of a new member of the court coming on. it's hard enough to come up with a really good argument that enables you to answer the hard questions that come in from whoever, from whatever the source. what i think will be interesting to watch is the extent to which the second circuit's docket which has got a very heavy business component to it, a very heavy finance component will end up causing justice sotomayor to look at the law in ways that may

be different from justice souter simply because they have different backgrounds from their legal work that they bring to bear to the supreme court's problem solving. and so i would expect to see some key departures start to emerge within the first couple of years of her time on the court. and that may well end up affecting how certain arguments get postured. i don't know that it would be a stylistic thing so much as it would be just we start to see where she fits within various alignments on certain areas. >> one thing that i think i'll be watching for and it goes to david's point about experience is unlike justice souter, judge sotomayor has been a prosecutor for a number of years, and it'll be interesting to see whether that will influence the direction the court takes in only so of these criminal procedure and criminal law matters. i don't anticipate my guess is

much difference in terms of the overall tenor of arguments. there's been some stuff about her being really tough at arguments and so. i've had the privilege of sending clerks to her almost every year for several years, and they uniformly rave about her skill at argument, her hard working -- just how hard she works to get it right, and i think she's not going to bring a change necessarily, she's not going to bring a change to the type of arguments that we're all accustomed to. but i think in a few substantive areas of which criminal law is one we might see some changes. >> i'd say also justice alito has spoken about how hard it is to get a word in edge wise now during argument. you'll really have to jump in each if you're taking a tack that's not on point with the last justice who asked the question. and chief justice roberts just a few weeks ago talked about how

he's been thinking that the supreme court really needs to notch it back a little bit in terms of the intensity of questioning. and, unfortunately, i think -- well, we'll see how justice sotomayor handles that, but my impression that she won't have any trouble jumping in to the argument, and she isn't going to decrease the intensity level. at least that's the, that's the impression people have of her. yes. >> since the topic was broached about will there be any changes if she becomes justice sotomayor, i believe there will be topic that already drastically different. there's a series of cases called the insular cases in which the supreme court held basically puerto rico was not incorporated into the u.s., and therefore, people of puerto rican background did not have certain rights that other people born on

the mainland would have. and because of that doctrine, people born in puerto rico are not necessarily natural-born citizens, and if congress were to amend the statute which grants them citizenship, anyone born after that would no longer be a citizen of the u.s. and so that's a very controversial doctrine, and it seems, i guess, appropriate now that the doctrine was developed about puerto rico, and now we get a person of puerto rican background on the supreme court, and if that would arise, the decision might be affected, and i wanted your thoughts on the impact on the issue. >> i have no particular belief that, you know, just because she's puerto rico she would approach a case a certain way. i would say the insular cases are now not just about puerto rico, but about a whole, big, difficult legal question which is the aapplicability of the

constitutional provisions, and i imagine any justice would approach it with that really in mind more than the specific, narrow question of the origins of one of the sets of cases. i mean, obviously, the insular cases wasn't just puerto rico, it was the philippines and a variety of other places as well. regardless of the answer, i would imagine it's not going to really be determined by her background and interest in puerto rico. >> okay. i think we're about to close, and i just thought i would ask -- >> i have one more question i wanted to ask. >> okay. >> i was going to ask it before the topic i approached. in this case ask the sprip -- and the strip search case -- don't know. yeah. in the strip search -- can everybody hear me? >> yeah. >> okay. well, in the strip search case the supreme court basically held that the constitution protected unreasonable search and seizure,

yet a few terms ago in the bong hits for jesus case the supreme court felt it would not protect students' rights. first question, isn't that contradictory, and the second part, is what the supreme court basically saying that the right for unreasonable search and seizures is a more fundamental right than the right of freedom of speech? >> hardly on the latter proposition. i do not think that the court would if it were to prioritize those rights, i don't think it would come out that way. i don't really think the decisions are contradictory though. i thought this most recent decision just had a lot to do with sort of setting, you know, the court giving plenty of discretion to schools and school administrators but setting some very outer boundaries beyond which a school really can't go. and i thought the facts of this case were shocking enough that it lent itself to that kind of decision. you know, i would not have anticipated the 8-1 lineup in

this case on the underlying fourth amendment issue. i think it was made a little bit easier for the court by the fact that they had a very strong, as neal said the government's brief said it violated the fourth amendment, but there was a strong case for qualified immunity in this case, and i think that made the court probably a little more comfortable than it might otherwise have been with finding the fourth amendment violation. i thought it was drawn there a little bit by the u.s. brief. i still wouldn't have seen the 8-1 coming, and i have questions about whether argument in that case might have affected the outcome as well because i think the argument in that case was widely considered at the time and certainly by the time justice ginsburg was finished talking about it, argument in that case was pretty widely considered a bit of a debacle for the court. there was a real sense at least from where i was sitting that some of the justices were just not taking this claim even remotely seriously, they were telling jokes about it, and that

put people off, i i thit embarrassed the -- i think it embarrassed the court, and i think it may have ended up helping to educate some of the justices about -- i think these fourth amendment cases are hard for them. they really do, either explicitly or implicitly have to figure out something about social expectations of privacy, where is this country in terms of social expectations of privacy, and i think because that argument became so controversial in that case, the justices probably heard more from the people in their circles than they otherwise might have about how people did feel about the privacy of this girl's body. and that they may well have been educated by the whole process. so i think the argument in this case was a bit of a wild card, it may help to explain the lopsided nature of the vote in that case. but i'm not sure i see it as inconsistent with their other school cases. >> it was also extraordinary that as you were alluding to that justice ginsburg made public comments about the oral

argument while the case was still spending. she said her male colleagues didn't get it, how embarrassing a strip search was for a teenage girl. okay. we just have a minute or two, and i just thought we could maybe go down the line and ask for your thoughts about next term either in terms of how judge sotomayor may change things or a case or two that you're watching. want to start? >> well, i'm watching this salazar vs. bono case about the cross to see how the sueman case played out in that one, and i'm also very interested there are two big criminal case on the docket right now, the schatzler case from maryland which raises question about actually the fifth amendment miranda rule about invocation of the fifth amendment right to counsel and how protective that rule will be. there's another miranda case about the paul case about --

powell case about how explicit the warnings under miranda have to be in terms of explaining the right to have counsel present at questioning itself. and my guess is that both cases will be decided on fairly narrow grounds, but they also are the first opportunity for the chief justice and justice alito to really weigh in on how they feel about miranda. and although i think the bedding is -- betting is pretty solid that since the dickerson case which reaffirmed miranda is pretty much on strong footing, those justices weren't there when dickerson was decided, when miranda was reaffirmed. and people also thought the exclusionary rule was on strong footing until they joined the court, so i am interested to see whether either of those cases will provoke any kind of separate writing by those justices that will give us a read on where they are on miranda. >> next term i think is shaping

up to be enormously interesting with the hillary, fec, fitness case in -- finance case in september, sarbanes-oxley, the things i'm watching more closely are united states vs. stevens which is a case about a congressional statute that's been struck down that prohibits the commercial sale of these really horrific videos about cruelty to animals and a case that we have a petition up for now called international humanitarian project vs. holder which is about the material support statute parts of which have been struck down by the ninth circuit as unconstitutional violations of free speech. this is a criminal law that prohibits material support against terrorism. it's of enormous important to the departments that the court take this and get it right. >> in addition to some of these ones i think neal mentioned one that i'm really interested in which is this constitutionality

of the accounting oversight board. i think the court tends to say very interesting things whenever it gets into these questions that deal with the structure of government, and i think this will be more of the more interesting ones for five or six years. >> well, two cases that i'm involved in that i'll obviously be following very closely, track some of the themes. i think next term is going to be a very interesting term from the perspective of having the court look closely at the aftermath of the financial crisis. not only do you have the pcaob case, you've got a case called jones vs. harris associates which will be a very profound effect potentially on mutual funds that common investors invest in and the allegation that investment advisers that have captive funds breach their fiduciary duties by charging twice as much to regular folks like us than they do to institutional investors for virtually the same services.

and then there's a case called merck vs. reynolds which will go into the inquiry notice test for bringing claims against companies for violations of securities laws. so what's going to happen, i think, as these cases play out is that there will be a focus on the aftermath of the financial crisis, and the court looking doctrineally at a couple of these historic statutes in the aftermath of this very large financial meltdown that we have. institutionally at the court, my observation is that the justices will be taking quite some time to get a sense of their new member and chief justice roberts will be on the court for his fifth term, that'll be a significant time. and so this combination of kind of feeling each other out will play itself out both in the arguments and in the opinion writing.

i mean, justice alito's very first opinion justice scalia slammed him for relying on legislative history. you know, welcome to the supreme court. and it'll be interesting to see what kind of welcome justice sotomayor receives. >> all right. well, thank you so much to the panel and to the audience. we'll see you next year. [applause] ..

[inaudible conversations] >> republican senator john cabell talks about supreme court nominee sotomayor, her confirmation hearings are scheduled to begin july 13th. this is 10 minutes. >> mr. president? i'm concerned about the proceedings of the court to be dispensed with. >> without objection. >> referring to the debate centered on whether it is the preferred judge plans to consider foreign law and public attitudes when interpreting rus constitution and laws. the american people through

their representatives, by which we are governed. it is from them that the constitutional turn under which several branches of government hold their power is derived. judges have the responsibility to faithfully interpret the constitution, the laws that have been adopted to the democratic processs, judges don't make law, they interpret. within the constitution structure, the growing idea of using foreign law to interpret our own laws in the constitution is troubling for two big reasons. as chief justice john roberts pointed out during his confirmation hearing, the consideration of foreign law by american judges is contrary to the principles of democracy. 4 in judges and legislators are not accountable to t

american electorate using foreign law--an analogy would be non-citizens voting in our elections. -- these would free judges to enact personal preference under the cloak of legitimacy. if an american judge wants to find foreign judicial decision or a legislative enactment consistent with preferred outcome in the case, he or she could find it in the laws of states, that would be judicial activism compound by the error of using appropriate presence. as we continue to judge sotomayor's nomination to the highest court the american people and senate deserve to know where she stands on this issue of using foreign law to interpret the u.s. constitution. we do have some materials that

suggest her views were waiting on a number of important documents that will help us better understand her views. in response to the senate judiciary committee's questionnaire, she identified 200 public speeches or remarks she has given. we have not received a draft, topic description for more than 100 of them. these include 4 locations in which she spoke on the issue of foreign law. on one of these occasions, judge sotomayor participated in a panel discussion at st. john's law school in 2006. her judiciary committee questionnaire, she spoke on permissible uses of national law by american courts. in october 2008, judge youth corps to participate in a roundtable discussion at the university law school on the dynamic relations between international and national tribunals. with hearings scheduled to begin in a couple weeks, getting this

information is critical to our understanding of her judicial philosophy. the most notable of the materials we have is a 22 minute speech that sotomayor gave to the aclu on april 28, 2009. entitled how federal judges look to advance foreign law under article 6 of the u.s. constitution. from that speech we begin to see how foreign law could shape judge sotomayor's jurisprudence in the future. her views were not casual observations that directed to the specific topic. in this speech, she says, quote, international law and foreign law will be very important in the discussion of how we think about the issues in our legal system. it is my hope judges everywhere will continue to do so because within the american legal system we interpret our law the best we can and that means looking to what anyone has said to see if

it has persuasive value. mr. president, i would ask what this has to do with judging, asking what, quote, anyone else has said, to see if it has persuasive value. how about using the original laws of to judge shall construction, precedents and other tests based on our common law heritage. judge sotomayor reviews this is a source for good ideas that can set our creative juices flowing, in her words. deciding an antitrust case or indian law issue or establishment of religion case does not require creative juices. indeed, it could interfere with specific rules of construction or application of precedent. judge sotomayor says not considering foreign law would be asking american judges to close their minds to good ideas. what is close minded, i would ask, about requiring that

american judges interpret our laws and our constitution? that is what they take their oath of office to do. let us remember that judge sotomayor has previously stated this is where policy is made. when you combine the notion that judges may usurp the legislative power of policymaking with the view that foreign law is -- creative ideas for a judge to employ as he or she sees fit, you open the door to the worst form of judicial activism, completely untethered from american legal principles. judges do not have the responsibility of finding new, good ideas that would make good policy. that is the role for our elected representatives. ideas expressed by judge sotomayor threaten to undermine the system that has served us well for two centuries. judge sotomayor went on in the same aclu speech to criticize two sitting justices to align her views with those of justice

ginsberg who recently endorsed the use of foreign law at a symposium in ohio state university. specifically, judge sotomayor stated, quote, the nature of the criticism comes from a misunderstanding of american use of that concept, using foreign law and that misunderstanding is endorsed by our own supreme court justices. justice scalia and justice thomas have written extensively criticizing the use of foreign and international law in supreme court decisions. she continues quebec a share more of the ideas of justice ginsburg in thinking unless american courts are more open to ideas raised by foreign cases than international cases, we are going to lose influence in the world. justice ginsberg says foreign ideas can add to the story of knowledge relevant to the solution of a question and she is right. mr. president, judge sotomayor

f. rationale for judge last looking at foreign laws so the united states does not lose influence in the world is absolutely irrelevant to the role of judges in america. it is the province of the president and legislative bodies, not activist judges, make policy and manage foreign affairs. in defending the supreme court's use of foreign law, judge sotomayor made an astonishing argument, just asking -- excuse me, we're just using that law to help us understand what the concept went to other countries and help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking. the mainstream of human thinking. the words of our constitution were not intended to reflect the mainstream of human thinking. think about the mainstream public opinion in europe or asia or africa or south america at the end of the 18th-century. even today it is doubtful the united states would be satisfied

being governed by the thinking of most other governments in the world such as china, much of the muslim world, dozens ofs top receiver rob a whirl. as i noted in my remarks, harold koh's views on koren putt -- foreign policy, if the founding fathers had been given to transnational, america would not be the land of freedom in the world that it is today. nor would it be a leader in convincing other nations to protect free speech, assembly and other political freedoms such as are being observed in places like iran today. if we really want -- to free really want judges to look at the laws of foreign countries when deciding our most treasured constitutional provisions such as, for instance, the second amendment's, i do not, the american people share my view. digital activism is not a popular concept. i do not intend to judge her qualifications to decide cases on the u.s. supreme court, based

on this one speech, i believe it is fair to ask what else judge sotomayor has said on the subject. there are apparently other speeches that we do not have. we should redefine fees or ask whether there are other records, transcripts, tapes or video recordings, and so on, that would indicate whether her april 28th speech is indicative to her approach to judging. as we begin to consider the nomination of judge sotomayor, we will need this information to properly evaluate her qualifications as it relates to her view that using foreign or international law is an appropriate for u.s. supreme court justices to interpret our u.s. constitution. >> coming up to dick, a senate hearing where several cabinet secretaries will be discussing climate change and energy legislation. they include energy secretary stephen chu, secretary, and v s

vilsack n, at 10:00 a.m. eastern on c-span. >> the senate health committee resumes its work on health care of you. >> some of us, government raised. >> it is not public. >> for me, my tax dollars. >> how is c-span funded? 30 years ago america's cable companies created c-span as public service, private business initiative. no government mandate, no government money. >> more now on the supreme court

with justice stephen breyer and former justice sandra day o'connor. they took part in an event last week looking at how judges are selected. justice breyer is nominated by president clinton and justice o'connor was appointed by president reagan. they are joined by a law professor from the aspen institute in colorado. this is about an hour and 15 minutes. >> i am eric motley and i am here at the aspen institute and wanted to welcome you to another provocative session in our series on justice in society. a couple housekeeping points, we are filming, we are taking this session. if you could silence your phones and blackberries that would be much appreciated. the last 20 minutes of this program will be reserved for q&a. we will have stationary bikes. if you could make yourselves to those stationary bikes and introduce yourself speak for

proceeding to ask your questions, questions, a few statements, that would help us considerably in meeting all the needs of our taping technicians. my honor is to introduce you to the monitor, sandy levenson, a professor of law at the university of texas, has by nos in the back of your program, has had a distinguished life of letters. among the vehicle at the aspen institute tied for first among people who do not broker introduction, former associate justice sandra day o'connor and justice stephen breyer. i want to add one item appropriate to the general theme of selecting judges because both

justice o'connor and justice breyer have been selected twice. justice o'connor was among the very last elected judges in arizona if i remember correctly, and by president reagan to join the supreme court. justice breyer, for many years, was a distinguished member of the first district court of appeals in boston appointed to that office by president carter and i am correct in saying he was the last person not confirmed during the carter administration. so i do hope and a soon we will talk about judicial selection beyond the topic of the hour, judicial selection for the united states supreme court. and i take it that it is not a miss when i suggest you might need a modicum more introduction than justice breyer and justice

o'connor. among other things, this is a very distinguished professor of law at georgetown university. for purposes of this panel, probably he is among the most relevant item on his resume is he was assistant attorney general in the first term of the george w. bush administration for legal policy. and by innuendo it was suggested among a lot of people that he was very key in selecting judges. not for the united states supreme court because among other things, president bush couldn't get the supreme court during that term, but i suspect he might have weighed in on occasion as to district, circuit court appointments with regard to what the bush a ministrations had in mind. in any case i am thrilled to be

here, we will proceed in the order that people are seated. justice o'connor will begin following by justice breyer, then prof. dinn. >> what should we start with? >> anything you would like to say about the process of judicial payment, selection, state courts, where most states, especially in mississippi, i know that you have strong views about judicial election rather than appointment, or the selection process in the united states supreme court. >> i think we are seeing the selection process work itself out again as we speak. we have a vacancy on the supreme court on the retirement of justice david souter and the

selection of is replacement and i understand on july 13th, fearing slogan for judge sotomayor. that is always an educational experience for the company. once a justice is concerned and on the bench, you don't see a lot, certainly not much on television. we don't have cameras in the supreme court room at this point and we won't see them. when i took the oath of office at the u.s. supreme court, i took it in the supreme court chambers, the president and mrs. reagan were in attendance. that is the last time the ceremony has been collected because residents like to have it on television. they like to have all the tv cameras. i think i was the last one sworn in. the selection process normally includes input from the attorney

general to the president by way of selection. william smith was the attorney general when i was elected and he told me because president reagan had indicated during his campaign that if he had a chance he would like to put a qualified woman on the supreme court, attorney general smith began collecting a few names. his list was pretty sharp because there were not many women judges and there were even fewer republican women judges. his list was pretty short, kept it under his telephone at the department of justice. there was a vacancy and william french smith put out his pitiful little list and there i was. i ended up on the court room. president reagan was very fond of horses and ranch life and so forth, so my own ranch

background appealed to president reagan, i suspect, but i don't know, possibly so. the selection process is largely behind closed doors, the confirmation process, because the constitution says the president shall nominate with the advice and consent of the senate so the senate gets into the act and most of our court's history, the senate did not summon a nominee for questions. that began, i think, with felix frankfurter's nomination. he was asked to come over and it continued. it is this grueling process, gavel to gavel television coverage, the only chance the nation has to see the nominee in action so to speak. it can be a learning process. when chief justice john roberts's hearing was conducted we all watched in amazement, he was very articulate and knowledgeable and we learned a

lot from that process. our states have their choice of how to nominate judges and select them. it was president andrew jackson who persuaded some states, starting in georgia, elected their judges instead of a.them by the governor with some kind of confirmation process. michael jackson was a real populist. a lot of states fell for his line and started collecting judges and still do. there are some -- in number of retention elections in 30 states. at least 20 some states have partisan election of judges involving campaign contributions, mean television ads and the whole ball of wax. it is a very unfortunate way of selecting judges.

i am biased on this subject so you will hear it in my remarks. i do not think that is a healthy way to select judges. we will have more to say about that later because i don't want to take a too much time. >> that is where you left off. i think probably one of the problems we both see, which is a problem, is the problem of campaign contributions in state elections for judges. my student, tom phillips, i was teaching years ago to become chief justice of texas, to raise $4 million, that was many years ago, it is a lot more, a lot more now. change, and not for the better. why? why is it bad? do you think you can get a fair

trial before a lawyer and the judge, when lawyer a is giving $100,000 to this particular judge? that is a problem. we heard, very interestingly, the conference we had, a judge from texas is a trial lawyer who does not like the system. he asks the other lawyers, why do you contribute this money? he says they tell me that it doesn't matter, the judge can be fair, he tries to be fair, it is a question of perception, we agree with that, but it isn't the reality. he asked this question, what you do is you pick which candidate is the best and you give them the money, and they say no, give them those candidates, the money. he says why? hm

hmmm. [laughter] the perception problem is a serious problem. we have a case this term, where the court ventured delicately into this area. the question was this -- one of the judges received $3 million from one individual, the corporation, and $3 million, a little bit went to him but most was packaged against his opponent. it was in support of him. then he sat on the case involving this particular corporation and the question was whether the due process clause of the constitution which says you shall not deprive anyone of life, liberty or property without due process of law, whether that was violated when the judge sat on the case, or he had received this rather large amount of money, directly or

indirectly, from a party to the case, and we held, 5-4, that it did violate the cause and he could not sit on the case having received that amount of money directly or indirectly. but form we sent had some pretty good questions. they said to that five, how are you going to administer this? how is it going to work out in detail? after all, a lot of people have influence of the selection of judges. how are you going to do it? the response of the majority was we are not in charge. we simply trace the outer bounds, and we can save this went beyond the outer bounds but within that boundary, there is an enormous amount to be done, and the people who will do it, we believe should do it, are the states, the bar associations,